High court aims to balance AIDS, sex trafficking fights

Apr. 22, 2013
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"If you want to run a government program, you have to speak the government's speech," Supreme Court Justice Ruth Bader Ginsburg said disdainfully Monday during oral arguments on a case concerning the mandate that international organizations have anti-human trafficking policies in order to receive HIV/AIDS funds. / Jessica Hill, AP

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON - The Supreme Court appeared split Monday on whether the government can insist that outside groups using its money to fight HIV/AIDS overseas must oppose prostitution and sex trafficking.

The case, which is expected to be decided by late June, presents a test of the First Amendment's right to free speech as well as what strings the government can attach to its money.

At a policy level, it pits two worthy goals against each other: preventing the spread of HIV/AIDS and opposing the sex traffic that ensnares young women and girls, particularly in Africa and Asia.

After an hour-long argument, it seemed that the only thing less popular among the justices than the government's "loyalty oath," as Chief Justice John Roberts put it, was the idea that it can't choose who gets funding.

"The government is just picking out who is an appropriate partner to assist in this project," Roberts said, comparing it to an anti-smoking campaign that avoids giving money to defenders of smoking.

As is often the case, the justices let loose with a barrage of hypothetical examples designed to back up their arguments. Several wondered whether the government could require its private-sector vendors to recycle, promote gun control or oppose apartheid. Justice Antonin Scalia argued the government must be able to favor the Boy Scouts over the Muslim Brotherhood.

On the other hand, both conservative and liberal justices worried that the government was trampling on free speech by requiring its partners fighting HIV/AIDS to oppose prostitution and sex trafficking. Groups opposed to the mandate argue that it's often more effective to work with prostitutes and brothels to prevent the infection's spread than to criticize them.

"If you want to run a government program, you have to speak the government's speech," Justice Ruth Bader Ginsburg scoffed disdainfully. Justice Samuel Alito called it "compelled speech," adding, "It seems to me like quite a dangerous proposition."

The United States has invested upwards of $60 billion during the past decade in the battle against HIV/AIDS, and the money has paid dividends. Nearly 5 million people in sub-Saharan Africa are getting AIDS treatment today. In 2003, only 50,000 were receiving anti-retroviral therapy.

But the anti-prostitution policy has not been enforced since it was blocked in court eight years ago. Two lower courts have ruled against the government - even after it changed the policy by allowing groups to funnel government money through subcontractors with opposing viewpoints, something Justice Stephen Breyer decried as "totally hypocritical."

David Bowker, representing scores of agencies providing preventive health services that do not want to take the government's pledge against prostitution, said the problem is the First Amendment.

"The only difference is the subject of prostitution. That's what makes it less palatable," Bowker said. Nevertheless, he argued, the government "cannot command fealty to their viewpoint."

But several justices wondered why not. When it comes to selecting vendors to deliver anti-HIV/AIDS funds around the globe, Breyer said, "There's no way, I don't think, to separate what they do from what they say."

Justice Elena Kagan recused herself from considering the case, leaving open the chance that the eight remaining justices reach a deadlock. That would have the effect of upholding the lower-court rulings, which went against the government, but without setting a nationwide precedent.